Patterson v. Minehan

• Decision Date: 11 June 1992
• Citation: 584 N.Y.S.2d 929,180 A.D.2d 241
• Parties: Elbert PATTERSON et al., Respondents, v. Thomas F. MINEHAN et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 929

584 N.Y.S.2d 929

180 A.D.2d 241

Elbert PATTERSON et al., Respondents, v.Thomas F. MINEHAN et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division Third Department.

June 11, 1992.

Carter, Conboy, Bardwell, Case, Blackmore & Napierski(Susan D. Harvey, Pamela A. Nichols and Edward D. Laird, Jr., of counsel), Albany, for appellants.

McPhillips, Fitzgerald & Meyer(Martin A. Meyer, of counsel), Glens Falls, for respondents.

Before WEISS, P.J., and MIKOLL, LEVINE, MERCURE and CASEY, JJ.

MERCURE, Justice.

Appeal from an order of the Supreme Court(Viscardi, J.), entered July 2, 1991 in Essex County, which, inter alia, denied a motion by defendantsThomas F. Minehan and Adirondack Surgical Group for summary judgment dismissing the complaint against them.

Plaintiffs instituted this malpractice action in November 1988 claiming, inter alia, that defendantThomas F. Minehan erroneously diagnosed plaintiffElbert Patterson(hereinafter plaintiff) as having cancer of the pancreas and that, as a result, plaintiff underwent unnecessary radiation therapy, surgery, X rays and laboratory tests.Supreme Court denied the motion of Minehan and defendant Adirondack Surgical Group (hereinafter collectively referred to as defendants) for summary judgment dismissing the complaint on the ground that the Statute of Limitations had expired and found questions of fact as to whether the treatment that Minehan provided was continuous and related to plaintiff's original condition.Defendants contend on this appeal that this determination was error because, upon plaintiff's discharge from the hospital in April 1985, no future plan of treatment was formed and Minehan's subsequent treatment of plaintiff for discrete illnesses was insufficient to toll the Statute of Limitations.

An action for medical malpractice must be commenced within 2 1/2 years of the date of accrual (CPLR 214-a).A claim generally accrues on the date of the alleged wrongful act or omission (Nykorchuck v. Henriques, 78 N.Y.2d 255, 258, 573 N.Y.S.2d 434, 577 N.E.2d 1026).Under the doctrine of continuous treatment, however, the statute is tolled until after a plaintiff's last treatment " 'when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint' "(McDermott v. Torre, 56 N.Y.2d 399, 405, 452 N.Y.S.2d 351, 437 N.E.2d 1108, quotingBorgia v. City of New York, 12 N.Y.2d 151, 155, 237 N.Y.S.2d 319, 187 N.E.2d 777).The doctrine is designed to "maintain the physician-patient relationship in the belief that the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure"(McDermott v. Torre, supra, 56 N.Y.2d at 408, 452 N.Y.S.2d 351, 437 N.E.2d 1108) and, therefore, a patient need not " ' * * * choose between silently accepting continued corrective treatment * * * with the risk that his claim will be time-barred or promptly instituting an action, with the risk that the physician-patient relationship will be destroyed' "(Ross v. Community Gen. Hosp. of Sullivan County, 150 A.D.2d 838, 840, 541 N.Y.S.2d 246, quotingRizk v. Cohen, 73 N.Y.2d 98, 104, 538 N.Y.S.2d 229, 535 N.E.2d 282).

Thus, the Court of Appeals has emphasized that a patient is not entitled to the benefit of the toll unless there has been a course of treatment established with respect to the condition that gives rise to the lawsuit (Nykorchuck v. Henriques, supra at 258-259, 573 N.Y.S.2d 434, 577 N.E.2d 1026).Neither the mere continuing physician-patient relationship (McDermott v. Torre, supra, 56 N.Y.2d at 405, 452 N.Y.S.2d 351, 437 N.E.2d 1108), "the continuing nature of a diagnosis"(id., at 406, 456 N.Y.S.2d 351, 437 N.E.2d 1108), routine examinations of an apparently healthy patient, diagnostic examinations, even when conducted repeatedly over a period of time (Massie v. Crawford, 78 N.Y.2d 516, 520, 577 N.Y.S.2d 223, 583 N.E.2d 935), nor a patient's initiation of return visits merely to have his or her condition checked (McDermott v. Torre, supra, 56 N.Y.2d at 405, 452 N.Y.S.2d 351, 437 N.E.2d 1108) is sufficient to satisfy the requirements of the doctrine.

The pertinent circumstances in the instant case are as follows.On April 1, 1985, Minehan diagnosed a mass at the head of plaintiff's pancreas as a carcinoma and then performed a pancreatoduodenal resection, a gastric and biliary bypass procedure and a vagotomy.Plaintiff was discharged from the hospital on April 23, 1985, but thereafter developed a pseudocyst that necessitated further surgery and hospitalization until June 2, 1985.Plaintiff had several appointments with Minehan between June 2, 1985 and April 13, 1988.Defendants' records indicate that plaintiff was being seen in "follow-up", and numerous laboratory tests and X rays, including blood tests and a liver scan, were ordered.In addition, Minehan arranged a consultation with an oncologist from Albany Medical Center to discuss...